How many MPs do you need to make law?

Mar. 11, 2017, 12:00 am

By JILL COTTRELL GHAI

A general view of parliament chambers with an ongoing committee session.Photo/HEZRON NJOROGE

No, it’s not a modern, politicised version of the mediaeval
controversy as to how many angels can stand (or dance) on the head of a pin.
It’s a question raised by the MPs themselves, because apparently they want to
reduce the quorum in the National Assembly to 15.

The quorum is the number of people who must be present at a
gathering for decisions to be validly made. It is designed to avoid a situation
in which decisions are made by such a small number of people that they do not
really represent the body that is supposed to make the decision.

When Parliament needs to be present in large numbers

Parliament has various functions, according to the
Constitution. It “represents the will of
the people, and exercises their sovereignty”, for example. The National Assembly “deliberates on and
resolves issues of concern to the people”. It enacts laws (sometimes that
responsibility is shared with the Senate). It decides how national revenue is
divided between the levels of government, it allocates money to be spent by the
national government, and other national State organs, through the budget, exercises
oversight over how national revenue is spent, and over State organs.

A few functions require a minimum number of members to agree
on the decision: two-thirds of the members must agree on an amendment of the
Constitution, a motion to remove the President for violating the Constitution cannot
even moved with the support of at least one-third of members, and to be passed requires
two-thirds. At least two-thirds support is needed for a first extension of a
state of emergency, and three-quarters to extend it further. Two-thirds support
is also needed to change a resolution by the Senate about the way national
revenue is shared between counties, and to push a Bill through over the
President’s objections.

The regular quorum

Most other decisions do not need any more than the regular
quorum. These decisions include passing laws, approving the budget, approving
appointments (such as of the Chief Justice, IGP and Cabinet Secretaries), and
approving the use of the defence forces outside Kenya or their use to keep the
peace within Kenya.

We have 349 MPs in the National Assembly. Their job is to
represent the people of Kenya (all 43 million or so of them). How many MPs do you
think should participate to ensure that such important decisions reflect the
will of the people of Kenya? Or at least to represent the will of the body that
Kenyans elected to represent them?

All of them maybe? That is unrealistic. But maybe half of
them? Wait for it…..

The Constitution says that fifty members must be present in
the National Assembly for any business to be conducted, or fifteen members, in
the case of the Senate. One seventh of the members in the case of the National
Assembly and just over a quarter in the case of the Senate. So in the National
Assembly the members of one party could pass a law, or make certain other
decisions. In fact it could theoretically happen that a decision could be made
without anyone from either of the major parties/coalitions being present.

The old Constitution required a quorum of 30 (out of a total
of 222). The various bodies involved in preparing a new constitution thought
this was not enough. The need for an increased quorum was one of the issues put
to the CKRC by the people. The CKRC recommended one-third as the minimum to be
present before business could be conducted, and this remained in the Bomas
draft. In a house of the current size that would have been 116 members. The CoE
reduced this to one quarter (that would have been 87). The Parliamentary Select Committee in Mombasa
reduced it to the current 50 (while increasing the number of members).

Other countries

A rather small quorum is a legacy from the British. There a
quorum in the House of Commons is now 40 (out of 650—a mere sixteenth). Many former British colonies stick to this
approach. In India the quorum is one-tenth of the members. New Zealand now has
no formal quorum.

Other countries have higher quorums. In Australia it is
one-fifth of the members. The US Constitution provides that a quorum is half of
all the members (currently 218 in the 435-strong House of Representatives). And
in South Africa a majority of the members of the National Assembly must be
present before a vote is taken on legislation, and at least one third before a
vote on any other matter.

Why low quorums?

What is the justification for low quorums? Originally it was
probably because being an MP was very much a part-time occupation for gentlemen
(not women of course). That would not be a satisfactory approach here. Indeed,
the constitution makers wanted being a parliamentarian to be a full-time
occupation. Unfortunately, they did not make that entirely clear. Thus Kenyan courts
have held that it is a part-time occupation. One has to ask – why pay them so
handsomely and allow them such generous retirement packages if it is only a
part-time job?

The other justification is that these days most work of
parliaments is not done in the whole house but in committees. In
Sweden, for example, most of the work is done in committees, and the task of
the entire legislature tends to be formal. Some parliaments with small quorums
for the whole house have larger ones for committees.

Quorums in committees

How about Bunge? The quorum for a select committee is five,
according to the National Assembly’s Standing Orders. Committees tend to have
memberships in the 20s, though one is 50 strong, and some smaller than 20. But
basically the quorum is not very demanding.
Maybe more do in fact turn up to committee meetings (the quorum is a
minimum not a maximum). Committee reports tend not to tell us who attended.

MPs get sitting allowances for committee meetings: Shs 5000
for a meeting, so maybe they turn up. But other allowances have now been merged
into an extra 40% of their monthly salaries. Meaning there is no particular
incentive to turn up for a session of the whole House—other than a sense of
duty, of course.

Reflections

So what do they do, these MPs? Some of them seem to think
that their real job is administering the CDF. If they wanted to administer
things they should have become civil servants. It’s not what being an MP is
supposed to involve, as the constitution clearly shows.

And now they want the CDF to be written into the
Constitution with a guaranteed minimum budget of 2.5% of the national revenue.
This is five times the equalization fund that is supposed to make our country
less unequal. This means that the CDF is making it more unequal. They share the
CDF equally. But to treat those who are already unequal as though they are in
the same position in the same way is to strengthen inequality, and is constitutionally
questionable.

And now they want to get away with not turning up for house
sessions. Does it occur to them that citizens may conclude that we really don’t
need them?

It is ironic that in the same week as they formulated the
idea of reducing the quorum so that their work load is further reduced, they
have tried to vote massive farewell gifts to themselves—a decision that
required no more than 50 members out of 349.

Maybe it is time we gave some reality to another
constitutional provision: that a member who is absent from eight sittings
without written permission from the Speaker, and is unable to explain the
absence satisfactorily loses his or her seat.

The author is a Director of the Katiba Institute. This
article expresses her personal views and not necessarily those of the
Institute.